The Family Law Act of 1996 regulates the two main types of injunctions which focus on domestic violence and the regulation of the family home and who should be living there.
This is an order that prevents one of the parties in a relationship from using or threatening violent behaviour against the other or their child in order to protect the health, safety and wellbeing of the partner, child or both.
The order can prohibit the respondent from molesting the applicant, it can prohibit the respondent from molesting a child of the applicant, or can feature both of these prohibitions.
An occupation order regulates who can or cannot live in the family home. Therefore, if you have been the victim of domestic violence and do not feel safe continuing to live with the partner or you have left the family home because of violence but want to return, the best way to achieve this is to apply for an occupation order.
It can also be seen by these definitions that the two types of injunctions covered by the Family Law Act 1996 – non-molestation orders and occupation orders – are similar, are often used together and are aimed primarily at those who have been or fear they may be the victim of domestic violence.
- What the court will take into account
In deciding whether to grant an occupation order the court will apply the balance of harm test. In this the court will effectively determine who potentially has most to lose. It will consider the harm potentially suffered by the applicant or relevant child if the court does not make an order. It then compares this with the potential harm suffered by the respondent if the order is made.
If the balance of harm test is satisfied then the court will make the order. However, even if it does not lead the court into making an order, there is still the chance for the applicant to get the order approved by the court, as it has to examine all the circumstances of the case. This necessitates the court having regard to:
- The housing needs and resources of the parties
- Their financial resources
- The likely effect of making the order
- The conduct of the parties
- How to apply
If you want to apply for either or both of these orders, your solicitor should be able to apply on your behalf or, if you prefer, you can contact your local County Court or Magistrates Court direct to get the forms necessary to apply. Some injunctions may require the person concerned to apply to the High Court.
You will have to make a sworn statement, an Affidavit, which will set out why you consider the injunction to be required. Although most hearings will be in public with the respondent given notice to attend, in some cases, especially with this type of injunction with the health and safety of the applicant being at potential risk, some applications can be applied for as an emergency. These are known as “without notice” applications, usually made at short notice and in these instances the attendance of the respondent is not required.